County of Amador v. United States Department of the Interior (136 F. Supp. 3d 1193, 2015)

MEMORANDUM AND ORDER

Troy L. Nunley, United States District Judge

The matter is before the Court on Cross Motions for Summary Judgment filed by Plaintiff County of Amador (“Plaintiff’); Defendants the United States Department of the Interior (the “Department”), S.M.R. Jewell, and Kevin Washburn; and the lone Band of Miwok Indians (“Defendant Inter-venors”). (ECF Nos. 65, 82, and 84.) The Court has carefully considered the arguments raised in the parties filings, and has reviewed the attached exhibits and the relevant portions of the administrative record. For the reasons discussed below, Defendants’ Motion for Summary Judgment and Defendant Intervenors’ Motion for Summary Judgment are GRANTED. Plaintiffs Motion for Summary Judgment is DENIED.

INTRODUCTION

This lawsuit presents a challenge to the Record of Decision (“ROD”), issued on May 24, 2012, by Donald Laverdure, Acting Assistant Secretary of Indian Affairs, Department of the Interior, concerning the acquisition of the Plymouth Parcels property in trust for the lone Band of Miwok Indians, in anticipation of the construction of a gaming-resort complex. In summary, Plaintiff challenges are as follows: the Department’s determination to take the Plymouth Parcels into trust; the determination that the lone Band is a “recognized Indian tribe now under Federal jurisdiction,” 25 U.S.C. § 479; and the determination that the trust acquisition constitutes the “restoration of lands for an Indian tribe.that is restored to Federal recognition,” 25 U.S.C. § 2719(b)(1)(B), such that the property is gaming-eligible. Defendants and Defendant Intervenors respond that-the ROD is procedurally and substantively valid.

PROCEDURAL HISTORY

The complaint in this matter was filed on June 27, 2012. (ECF No. 1.) The complaint contains four causes of action. Claims one and two seek declaratory and injunctive relief under the Indian Reorganization Act that the Department’s determination - that the lone Band was “under federal jurisdiction” in June 1934 - constitutes an abuse of discretion and is arbitrary, capricious, and contrary to law. Claims three and four seek declaratory and injunctive relief under the Indian Gaming Regulatory Act that the Department’s “Indians Lands” determination - including that the “restored lands for a restored tribe provision” is met - constitutes an abuse of discretion and is arbitrary, capricious, and contrary to law.

Plaintiffs motion for summary judgment was filed on May 1, 2014. (ECF No. 65.) Defendant’s motion for summary judgment was filed on July 10, 2014. (ECF No. 84.) Defendant Intervenors’ motion for summary judgment was also filed on July 10, 2014., (ECF No. 82.) All parties submitted additional reply briefs, and Defendants submitted notices of supplemental authorities. (ECF Nos. 85-87, 89, 93, 94.)

STANDARD OF REVIEW

The Court’s review is governed by the Administrative Procedures - Act (“APA”). Ordinarily, summary judgment is appropriate when the pleadings and the record demonstrate that “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). However, in a case involving review of a final agency action under the [APA] ... the standard set forth in Rule 56(c) does not apply because of the limited role of a court in reviewing the administrative record.” Sierra Club v. Mainella, 459 F.Supp.2d 76, 89 (D.D.C.2006). Rather, “[u]nder the APA, it is the role of the agency to resolve factual issues to arrive at a decision that is supported by the administrative record, whereas ‘the function of the district court is to determine whether or not as a matter of law the evidence in the administrative record permitted the agency to make the decision it did.’ ” Id. at 90 (quoting Occidental Eng’g Co. v. INS, 753 F.2d 766, 769 (9th Cir.1985)). In this context, summary judgment becomes the “mechanism for deciding, as a matter of law, whether the agency action is supported by the administrative record and otherwise consistent with the APA standard of review.” Id. at 90. Pursuant to the APA, a reviewing Court shall “hold unlawful and set aside agency actions, findings, and conclusions found to be ... arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law,” or which have- been taken “without observance of procedure required by law.” 5 U.S.C. § 706(2).

STATUTORY AND REGULATORY FRAMEWORK

I. The Indian Reorganization Act of 1934.

Congress enacted the Indian Reorganization Act (“IRA”) in 1934. “The overriding purpose of that particular Act was to establish machinery whereby Indian tribes would be able’ to assume a greater degree of self-government, both politically and economically.” Morton v. Mancari, 417 U.S. 535, 542, 94 S.Ct. 2474, 41 L.Ed.2d 290 (1974). “[T]he Act reflected a new policy of the Federal Government and aimed to put a halt to the loss of tribal lands through allotment. It gave the Secretary of the Interior power to create new reservations, and tribes were encouraged to revitalize their self-government through the adoption of constitutions and bylaws and through the creation of chartered corporations, with power to conduct the business and economic affairs of the tribe.” Mescalero Apache Tribe v. Jones, 411 U.S. 145, 151, 93 S.Ct. 1267, 36 L.Ed.2d 114 (1973).

Of particular relevance here, section 5 of the IRA authorizes the Secretary of the Interior to acquire in her discretion “any interest in lands ... for the purpose of providing land for Indians.” 25 U.S.C. § 465. Section 5 further provides that any such lands “shall be taken in the name of the United States in trust for the Indian tribe or individual Indian,” and “shall be exempt from State and local taxation.” Id. The Secretary has also promulgated regulations governing the implementation of section 5. See e.g. 25 C.F.R. § 151.3(a)(3) (providing that trust acquisition may occur “[w]hen the Secretary determines that the acquisition of the land is necessary to facilitate tribal self-determination, economic development, or Indian housing”).

The IRA also defines “Indians” in several ways, including as “all persons of Indian descent who are members of any recognized Indian tribe now under Federal jurisdiction,” and further defines “tribe” to mean “any Indian tribe, organized band, pueblo, or the Indians residing on one reservation.” 25 U.S.C. § 479. In 2009, in Carden v. Salazar, 555 U.S. 379, 382, 129 S.Ct. 1058, 172 L.Ed.2d 791 (2009), the U.S. Supreme Court clarified that, “for purposes of § 479, the phrase ‘now under Federal jurisdiction’ refers to a tribe that was under federal, jurisdiction at the time of the statute’s enactment. As a result, § 479 limits the Secretary’s authority to taking land into trust for the purpose of providing land to members of a tribe that was under , federal jurisdiction when the IRA was enacted in June 1934.”

II. The Indian Gaming Regulatory Act

In 1988 Congress enacted the Indian Gaming Regulatory Act (“IGRA”) to regulate gaming operations owned by Indian tribes. The IGRA’s purpose includes: “to provide a statutory basis for the operation of gaming by Indian tribes as a means of promoting tribal economic development, self-sufficiency, and strong tribal governments.” 25 U.S.C. 2702(1).

Section 20 of the IGRA generally prohibits tribal gaming on lands acquired by the Secretary in trust after October 17,¡ 1988, unless the acquisition falls within one of the Act’s exemptions or exceptions. 25 U.S.C. § 2719. For example, lands acquired after October 17, 1988, may still be eligible if they are part of: “(i) a settlement of a land claim, (ii) the initial reservation of an Indian tribe acknowledged by the Secretary under the Federal acknowledgment process, or (iii) the restoration of lands for an Indian tribe that is restored to Federal recognition.” 25 U.S.C. § 2719(b)(1)(B). Another exception involves a determination by the Secretary that “a gaming establishment on newly acquired lands would be in the best interest of the Indian tribe and its members, and would not be detrimental to the surrounding community.” § 2719(b)(1)(A).

The specific exception relied upon by the Department in the instant case is contained in section 2719(b)(1)(B)(iii): “the restoration of lands for an Indian tribe that is restored to Federal recognition” (hereinafter the “restored lands” exception). .

In May, 2008, the Bureau of Indian Affairs (“BIA”) published regulations implementing IGRA section 20, codified, at 25 C.F.R. § 292 (the “Part 292 regulations”). The Part 292 regulations became effective in August, 2008. 73 Fed.Reg. 35,579. Of particular relevance, to this action are sec-, tions 292.7, 292.10, and 292.26(b).

Sections 292.7 (“What must be demonstrated to meet the ‘restored lands’ exception”?) and 292.10 (“How does a tribe qualify as having been restored to Federal recognition?”) provide criteria by which the restored lands exception can be met.

In the instant case, however, the ROD relies upon section 292.26(b), the “grandfathering” provision, to meet the restored lands exception. The grandfathering provision provides that the Part 292 regulations shall not apply to agency actions when, prior to enactment of those regulations, the Department or the National Indian Gaming Commission (“NIGC”) had already issued a written opinion regarding the restored lands exception and the property at issue. 25 C.F.R. § 292.26(b). Here, the Department relies upon an Indian Lands Determination issued in 2006, which found the Plymouth Parcels eligible for gaming. Thus, the Plymouth Parcels fall outside application of the Part 292 regulations as set out in the ROD where' the Department determined 'that the restored lands exception is met.

BACKGROUND

According to Defendant Intervenors, the lone Band- of Miwok Indians traces its ancestry to Miwok and Nisenan people, who historically have resided on lands that today make up Amador County. (AR3528-301.) In the early part of the 20th Century Congress established a land purchase program, which enabled the BIA. to purchase land' throughout California with the aim of alleviating Indian landlessness and homelessness. (AR499-502; 644-45.) As further explained in the Ethnohistorical Overvieiv of the lone Band of Miwok Indians (2005), prepared for the lone Band (hereinafter the “Ethnohistorical Overview ”), the BIA appointed special agent C.E. Kelsey in 1905-06 to investigate the conditions of dispossessed California tribal members, including in Amador County. (AR3543.) His investigation included taking a census of the number of surviving Indian people residing at specific localities, including “Buena Vista [Richey],” “lone,” “Jackson. Valley”, and the “Jackson Reservation”. (AR3543-44; see. also “Census of Non-Reservation California Indians, 1905-1906” by C.E. Kelsey, ÁR3774.) In 1915, BIA special agent John Terrell revisited’ many of the Indian communities in California, using Kelsey’s census as a guide. (AR3544.) According to Terrell’s “Census of lone and vicinity Indians,” which included divisions for people living “At Jackson belonging to the lone Band” and “At Richey belonging to the lone band,” there were 101 “lone and vicinity” Indians. (AR3544 45; ECF No. 65 at 14.)

As further explained in the Ethnohistorical Overview, Terrell “located the lone village, which consisted of three homes and a sweat house, at about three and one-half to four miles out of lone.”. (AR3547.) “Terrell emphasized the importance of securing land for the lone Band, and initiated negotiations for the purchase of forty acres, which included the Indian residences on the property ... The purchase was approved, and attempts to finalize it were made between 1916 and 1930, but the transaction was never completed because the government was unable to obtain clear title to the land.” (AR3547.) See also “Authority” form, May 18, 1916, for the “PURCHASE OF LANDS FOR LANDLESS INDIANS IN CALIFORNIA” and allotting $2000 for “the purchase of 40 acres of land in Amador County, California (described by metes and bounds) from the lone Coal & Iron Company, for the use of 101 homeless California Indians, designated as the lone Band, at not to exceed $50 per acre.” (AR160.) See Letter from the Acting Assistant Commissioner of Indian Affairs to the Secretary of the Interior, “enclos[ing] herewith a partially executed deed, abstract of title in two volumes, and plat of survey in connection with the desired purchase of 40 acres in Amador County, at the price of $2,000 from the lone Coal & Iron Company, for the use of 101 homeless California Indians, designated as the lone Band. [¶] The tract in question is the ancient village site of these Indians and contains some rich valley land.” (AR4634-35.) It appears that efforts to acquire the aforementioned 40 acre parcel, called the “Arroyo Seco Ranch,” were ultimately abandoned around 1941. (AR3549; 506; 3972; ECF No. 65 at 16.)

Apart from this 40 acre parcel, Plaintiff draws attention to a tribal history - prepared by lone Band member Glen Villa Sr., in 1996. Villa wrote: “Buena Vista Rancheria, a 70 acre parcel of land 4 miles south of lone, was purchased for the lone' Band. Some of the people identified in the 1915 census already lived at this site which was an old Indian village called Upusuni.” (AR3972.) See also Buena Vista Ranche-ría Miwok Indian Tribe Background Materials, explaining: “The Buena Vista Ranchería was established as trust land for the Tribe’s benefit by the Secretary of the Interior under the Authority of the Act of 1914 in 1928.” (AR900; ECF No. 65 at 16.),

According to Plaintiff, there is no record of subsequent communication between the lone-area Indians and the federal government until the 1970s. By the early 1970s, some members of the lone Band had renewed their interest in securing BIA housing assistance and to secure control over the aforementioned 40 acre parcel. (ECF No. 65 at 18.) Accordingly, in 1972 the individuals filed an action in Amador County Superior Court to quiet title to the parcel. See Letter from the Acting Area Director to the Commissioner of Indian Affairs, dated July 20,1972, stating: “[t]he California Rural Indian Land Project, a project of California Indian Legal Services, has filed an action in the Superior Court of the State of California for the County of Amador to quiet title on a 40-acre parcel for the benefit of members of the lone Band of Indians. A copy of the complaint is enclosed.” (AR531.) In 1972 the court awarded title to- the parcel to Plaintiffs, which included individuals and “other members of the lone Band of Indians.” (AR535-36, Villa v. Moffatt, No. 8160, California Superior Court, Amador County.)

On October 18, 1972, Commissioner of Indian Affairs Louis Bruce sent a letter to the lone Band, stating in relevant’ part: “[The BIA] hás been informed that' the Indians continue to desire that .the land ultimately be taken by the United States and held in trust status ... Federal recognition was evidently extended to the lone Band of Indians at the time that the. lone land purchase was contemplated ... I therefore, hereby agree to accept by relinquishment of title or gift the following described parcel ’of land to be held in trust for the lone Band of Miwok Indians: [40 acre parcel described].” (AR533-34.)

As Plaintiff points out, other, members within the BIA questioned the conclusiveness of the Bruce determination. For example, the Assistant Secretary of the Interior wrote to the BIA Sacramento Area Director in 1973, stating “the former contemplated purchase of land for [the lone Band] by the United States may indicate that they are a recognizable group entitled to benefits of the Indian, Reorganization Act. We have no correspondence, however, from the group requesting recognition or a desire to establish a reservation. If the Band desires and merits Federal-recognition, action should be taken to assist them to perfect an organization .under the provisions of the Indian Reorganization Act.” (AR537.) In January, 1975, the Department’s Office of the Solicitor wrote to the Sacramento Area Director, stating: “The Solicitor’s Office is presently considering our. proposal that the lone Indians be extended Federal recognition.” (AR560.) In January, 1976, the Director of the BIA’s Office of Indian Services requested additional information regarding the historical existence of the Band, and whether it met the necessary criteria for recognition. (AR574.) In April, 1976, a BIA Tribal Operations Officer wrote to California Indian Legal Services, explaining that it needed'help in verifying “that the recent quiet title action instituted by named Ioné Indians ‘and others’ was in fact a representative action, and that title to the subject tract is being held by the parties and on behalf of the lone Band.” (AR580.)

In 1978, the Department promulgated regulations outlining procedures whereby groups of Indians could attain federal recognition as Indian tribes (hereinafter. re ferred to. as the “Part 83 regulations”). 25 C.F.R. §§ 83.1-13. At that time, the BIA also issued a list of federally-recognized Indian tribes, and a list of groups whose petitions for recognition were on file at the BIA. The Ione Band appeared on the latter list. (EOF No. 65 at 21; AR597.)

Defendants and Defendant Intervenors assert - as is stated in the ROD - that at some point in the 1970s, the federal-government began consistently taking the position that the lone Band was not a federally-recognized tribe, and therefore a de facto termination occurred. For example, a 1990 letter from Hazel Elbert, Deputy to Harold Burris, Sr. explained the position that the Bruce recognition was not in fact a recognition and' that the; Band was not federally recognized. (AR20808-12.) In litigation involving members of the lone Band in the 1990s (the Burris litigation, discussed supra), the government initially argued that in order for the lone Band to be'federally, recognized, it had to follow the procedures .outlined in the Part 83 regulations. The Interior Board of Indian Appeals, in 1992 in Ione Band of Miwok Indians v. Sacramento Area Director, decided that the lone Band had not yet been recognized and that-to become recognized it would need to follow the acknowledgement procedures stated in the Part 83 regulations, (AR812.) , A 1992 letter from Assistant Secretary-Indian Affairs Brown also took the position that to achieve federal recognition the lone Band would have to follow the procedures stated in the Part 83 regulations. -(AR4779.) Further, as stated by Plaintiff, in an undated briefing paper, apparently issued by the Department to the “President of the United State's,” the Department reiterated that: “It is the Department’s position that this group has never attained Federal tribal status and is not, therefore,' eligible for restoration ... It is our position that the lone Band should continue to seek to establish Federal status through the BIA’s acknowledgement process.” (AR794-95.)

In 1994, the 'federal government reversed course. In a letter dated March 22, 1994, Assistant Secretary-Indian Affairs Deer stated she was reaffirming the portion of the 1972 Bruce letter which stated that., “[flederal recognition was evidently extended to the lone Band of Indians at the time the lone land purchase was contemplated.” The Deer letter further stated: “As Assistant Secretary' ,of Indian Affairs I hereby agree to accept the land designated in the Bruce letter to be held in trust as territory of the Tribe.” The Deer letter further stated that the Band would henceforth be included on the list of Indian Entities recognized and eligible to receive services from the BIA. (AR4312.) The lone Band was placed on the Federal Register’s list of recognized tribes in 1995 and has been on that list since. (AR4826; ECF No. 82 at 15.)

In a July, 1994. follow-up letter to her March, 1994 letter, Deer clarified: “In my [previous letter], while I agreed in principle to accept that parcel of land referred to in the Bruce letter and which the Federal court in 1972 ruled belonged to various named members of the band, this does not mean that the Bureau will presently begin a process of taking this land into Federal trust.” (AR1126.) That follow-up letter further explained that “The title to this land [i.e. the 40 acre Arroyo Seco parcel] is not clear and its ownership is currently the subject of litigation. This litigation must-be resolved before the land could be considered for possible trust status. As an alternative, it may be- more expedient if land elsewhere could be taken intro trust for the band.” (AR1126.)

According to the Ethnohistorical Overview, in January, 1996, the lone Band met in Plymouth to establish a joint Interim Council, and an enrollment committee was formed. The enrollment committee established the following criteria for enrollment in the lone Band of Miwok Indians: 1) an individual must be a lineal descendant of the 1915 “Census of lone and Vicinity Indians by J.J. Terrell; or must be a lineal descendent of the 1972 judgment of Villa vs. Moffat; 2) an individual must possess Miwok blood; and 3) an individual must have had consistent interaction with the Tribe through cultural contacts with residents of the 40 acre tract that was the subject of the 1972 judgment. The BIA compiled a list of individuals who met these reqinrements, which was posted in the Amador Dispatch newspaper in May, 1996. (AR3550-51.)

In September, 2004, the lone Band submitted a request to the Department for an Indian Lands Determination (hereinafter “ILD”) regarding the Plymouth Parcels. (AR1401-13.) In November, 2005, with the ILD request pending, the lone Band submitted its application to the Department to have the Plymouth Parcels taken into trust for gaming purposes. (AR2751-3482.) In September, 2006, Associate Solicitor, Division of Indian Affairs, Carl Art-man issued a determination (hereinafter referred to as the “2006 ILD”) that the Plymouth Parcels met the restored lands exception; the 2006 ILD references the Bruce and Deer letters, among other instances of interaction between the federal government and the lone Band, (AR5550-54.)

Following issuance of the 2006 ILD, Amador County and the State of California appealed that determination to this Court. This Court dismissed that action as untimely on the basis that the trust application had not yet been approved. See Cnty. of Amador, Cal. v. U.S. Dep.’t of Interior, 2007 WL 4390499, at *4 (E.D.Cal. Dec. 13, 2007).

In January, 2009, Solicitor David Bernhardt circulated .a withdrawal memorandum and draft legal opinion to various members of the DOI, including the NIGC. The memorandum stated in relevant part: “We are now in the process of reviewing the preliminary draft Final Environmental Impact Statement for the Plymouth Parcel. As a result, I determined to review the Associate Solicitor’s 2006 Indian lands opinion and have concluded that it was wrong; I have withdrawn and am reversing that opinion It no longer represents the legal position of the Office of the Solicitor. The opinion of the Solicitor's Office is that the Band is not a restored tribe within the meaning of the IGRA." (AR7112.)

However, in a memorandum issued in July, 2011, Solicitor Hilary Tompkins stated, with regard to the Bernhardt position: “The Draft Opinion was never issued and the Withdrawal Memorandum was not acted upon on behalf-of the Department by any individual with delegated authority to make decisions under the IGRA.” (AR8823.) «The Tompkins memorandum further stated: “For these reasons, I hereby rescind the Withdrawal Memorandum and decline to issue the Draft Opinion. I also hereby reinstate the Restored Tribe Opinion regarding the lone Band’s eligibility to conduct gaming on the land in question.” . (AR8824.)

On February 24, 2009, the U.S. Supreme Court decided Carcieri v. Salazar, 555 U.S. 379, 129 S.Ct. 1058, holding that section 19 of the IRA “limits the Secretary’s authority to take land into trust for the purpose of providing land to members of a tribe that was. under federal jurisdiction when the IRA was enacted in June 1934.” Id. at 382, 129 S.Ct. 1058. Amador County sent comments to the Department thereafter,, arguing that the Secretary lacked authority to take land into trust for the lone Band, and the lone Bond sent responsive comments and submitted evidence that the Ione Band had been under federal jurisdiction in 1934. (AR7757-97; 8000-210; 8872-9191.) In May, 2012, the ROD issued, concluding among things that the lone Band was under federal jurisdiction within the meaning of the IRA and Carderi.

ANALYSIS

I. Statute of limitations arguments

The parties dispute whether the six-year statute of limitations in 28 U.S.C. § 2401 bars Plaintiff from contesting various Departmental determinations that are referenced in the ROD. Under section 2401, “every civil action commenced against the United States shall be barred unless the complaint is filed within six years after the right of action first accrues.” See Sierra Club v. Penfold, 857 F.2d 1307, 1315 (9th Cir.1988) (section 2401 applies “to actions brought under the APA which challenge a regulation on the basis of a procedural irregularity”).

Specifically, the Court construes the parties’ moving papers to dispute whether the Plaintiff can challenge: 1) the validity of the grandfathering provision contained in 25 C.F.R. § 292.26(b); and 2) the validity of the 1994 Deer determination and the 1972 Bruce determination insofar as they extend federal recognition to the lone Band.

With respect to section. 292.26(b), Plaintiff makes- arguments that touch upon the facial validity of the grandfathering provision, though Plaintiff expressly challenges the application of this provision to the lone Band’s case. (Pl. Reply, EOF No. 85 at 28.) The statute of limitations argument raised by Defendants and Defendant Intervenors is essentially that the Part 292 regulations were promulgated in May, 2008, and Plaintiff’s motion for summary judgment was filed more than six years later. Defendant Intervenors state that the complaint — which was filed in 2012 - does not raise the issue. However, paragraph 25, footnote 2 of the complaint states: “ ... the ROD’S conclusion that the 2006 Artman determination is “grandfathered,” and is not subject to the regulations adopted in 2008 (see 25 C.F.R., Part 292), is arbitrary, capricious, and contrary to law.” The Complaint also makes numerous arguments regarding the ROD’S determination that the Plymouth parcels qualified as restored lands for a restored Indian tribe under the IGRA; section 292.26(b) functions in the. ROD to permit the Secretary to make the determination that the restored lands exception is met. Accordingly, Plaintiff questioned the validity of section 292.26(b) within six-years of the promulgation of the Part 292 regulations, and so the six-year statute of limitations does not bar Plaintiff’s arguments.

With respect to the 1972 Bruce determination and the 1994 Deer determination, to be clear, this action is not brought against those determinations; it is brought against the conclusions reached’ in the ROD. A tenet of Plaintiff’s argument is that the ROD’S conclusions are arbitrary and capricious because are they based upon decades of inconsistency regarding whether the lone Band was federally recognized. Even if challenges to the Bruce and Deer determinations, per se, were precluded on statute of limitations grounds, the other arguments raised by the parties would require the Court- to examine the reasoning behind the Bruce and Deer determinations.

The Court finds Wind River Min. Corp. v. United States, 946 F.2d 710 (9th Cir. 1991) to be on point. Wind River held as follows:

If a person wishes to challenge a mere procedural violation in the adoption of a regulation or other agency action, the challenge must be brought within six years of the decision. Similarly, if the person wishes to be bring a policy-based facial challenge to the government’s decision, that too must be brought within six years of the decision ... If, however, a challenger contests the substance of an agency decision as exceeding constitutional or statutory authority, the challenger may do so later than six years following the decision by filing a complaint for review of the adverse application of the decision to the particular challenger. Such challenges, by their nature, will often require a more “interested” person than generally will be found in the public at large.”

Wind River, 946 F.2d at 715.

As a reference point, in Shiny Rock Min. Corp. v. United States, 825 F.2d 216, 218 (9th Cir.1987), the procedural issue was whether the so-called “notation rule” had been complied with by the Bureau of Land Management in rejecting plaintiff’s claim for a mineral patent; the notational rule required that the BLM make an initial determination regarding whether its records reflected that the land had been devoted to a particular use. See also Shiny Rock Corp. v. United States, 906 F.2d 1362, 1364-65 (9th Cir.1990) (related proceeding); Penfóld, 857 F.2d at 1315 (the statute of limitations in section 2401 “should apply to actions brought under the APA which challenge a regulation on the basis of procedural irregularity”).

Plaintiffs arguments are in part procedural and in part substantive. For example, Plaintiff argues that the Deer determination, and the Bruce determination upon which it relies, are wrong because they are based on a misunderstanding of the history of the lone Band in Amador County. Plaintiff argues that the lone Band has improperly received federal recognition because it lacks distinct status as a tribe apart from the Buena Vista and Jackson Rancheria tribes. These are not “purely procedural” arguments. (ECF No. 87 at 7.)

There is precedent .for applying the Wind River analysis within the context of federal recognition of an Indian tribe. In Artichoke Joe’s California Grand Casino v. Norton, 278 F.Supp.2d 1174 (E.D.Cal. 2003), plaintiffs challenged the Department’s decision to grant federal recognition to the Lytton Ranchería of California as an Indian tribe, even though the challenge was brought more than six years after the. recognition occurred. Applying Wind River, the district court held that plaintiffs’ challenge was not time-barred, while stating, in relevant part: “Plaintiffs’ claim’ concerning recognition of Lytton as a tribe is a substantive challenge to the Secretary’s recognition decision.. Further, when the Secretary made the decision to ... gran' Lytton federal recognition in 1991, plaintiffs could have had no idea that Lytton’s tribal status would affect them [by leading to tribal gaming nearby].” Artichoke Joe’s, 278 F.Supp.2d at 1183.

In N. Cnty. Cmty. Alliance, Inc. v. Salazar, 573 F.3d 738, 743 (9th Cir.2009), plaintiff claimed that the NIGC acted ultra vires in approving the Nooksacks’ [a federally recognized Indian tribe] proposed ordinance in 1993 without first making, an .Indian lands, determination for locations where gaming would be permitted under the ordinance. The Alliance court found that “ ‘[n]o one was likely to have discovered’ that the NIGC’s approval was ‘beyond the agency’s authority until someone actually took an interest in’ it. Wind River, 946 F.2d at 715. The Alliance ‘took an interest’ in 2006 when construction of the Casino began near some of its members’ properties. The Alliance ‘could have had no idea’ in 1993 that the NIGC’s approval of the Nooksacks’ Ordinance “would affect them’ in 2006 by leading to construction of a casino thirty-three miles from the Nook-sack reservation. See Artichoke Joe’s, 278 F.Supp.2d at 1183.” Accordingly, the Alliance court concluded that the six-year statute of limitations in section 2401 did not bar plaintiff’s claim. Alliance, 573 F.3d at 741.

Defendant Intervenors argue that, at the latest, the 1995 Federal Register listing of the Ione Band provided sufficient notice for Plaintiff to sue. See e.g. Camp v. U.S. BLM, 183 F.3d 1141, 1145 (9th Cir.1999) (“[P]ublication in the Federal Register is legally sufficient notice to all interested or affected persons regardless of actual knowledge or hardship resulting from ignorance”); Williams v. Mukasey, 531 F.3d 1040, 1042 (9th Cir.2008); Plaintiff knew the Deer determination had been made in 1994, because the issue arose in the course of the Burris litigation, and thus knew thereafter that the lone Band had appeared on the Federal Register of recognized tribes. See Wind River, 946 F.2d at 715 (noting that its holding would apply where “no one was likely to have discovered thgt the [agency’s action] was beyond the agency’s authority until someone actually took an interest in that particular piece of property — ”); Artichoke Joe’s, 278 F.Supp.2d at 1183 (noting that when the Department granted the Lytton tribe federal recognition, “plaintiffs could have had no idea that Lytton’s tribal statute would affect them” by leading to tribal gaming nearby).

However, as late as 2009, after many years of listings of the lone Band within the Federal Register, Solicitor Bernhardt took the position that the lone Band was not federally recognized and therefore that trust acquisition was improper. With respect to the 1972 Bruce detennination, .shortly thereafter it was the federal government’s position that the Bruce determination was wrong. The Court’s primary consideration with respect to the instant statute of limitations argument is that Plaintiff now challenges the ROD’S conclusions based upon, what appears to be, a pattern of inconsistency that has continued up to a point close-in-time with the ROD’s issuance. Plaintiff does state its arguments within the vein of Wind River: that the Department has exceeded its constitutional or statutory authority by reaching the decisions stated in the ROD, resulting in an adverse application of those decisions to Plaintiff. Wind River, 946 F.2d at 715. This is the first action proceeding to the summary judgment phase, in which the issue is the validity of the government’s acquisition of the Plymouth Parcels and them eligibility for gaming. Plaintiff’s previous action in this Court making the aforementipned challenge, was dismissed on the basis that the trust application had not yet been approved. Cnty. of Amador, Cal. v. U.S. Dep’t of Interior, 2007 WL 4390499, at *4 (E.D.Cal. Dec. 13,2007). In this case, Plaintiff challenges the substance of the ROD’S conclusions in part due to the ROD’S reliance upon the Bruce and Deer determinations. Therefore, Plaintiffs challenge to the Bruce and Deer determinations is not precluded by the six-year statute of limitations in 28 U.S.C. § 2401.

II. The Department’s two-part inquiry for “under federal jurisdiction,” 25 U.S.C. § 479

The. IRA defines Indian to include “all persons of Indian descent who are members of any recognized Indian tribe now under Federal jurisdiction,” and further defines “tribe” to mean “any- Indian tribe, organized band, pueblo, or the Indians residing on one reservation.” 25 U.S.C. § 479. Further, “§ 479 limits the Secretary’s authority to taking land into trust for the purpose of providing land to members of a tribe that was under federal jurisdiction when the IRA was enacted in June 1934.” Carcieri v. Salazar, 555 U.S. at 382, 129 S.Ct. 1058.

As .explained in the ROD, the Department has considered section 479 ambiguous regarding the meaning of “under Federal jurisdiction,” and so has constructed a two-part inquiry for determining whether a group was under federal jurisdiction.

The first part examines whether there is a sufficient showing in the tribe’s history, at or before 1934, that it was under federal jurisdiction, ie., whether the United States had .,. taken an action or series- of actions — through a course of dealings or other relevant acts for or on hehalf of the tribe or in some instances tribal members — that are sufficient to establish -or that generally reflect Federal obligations, duties, responsibility for or authority over the tribe,

[T]he second part ascertains whether the tribe’s jurisdictional status remained intact in 1934 ... In general [ ] the longer the period of-time prior to 1934 in which the tribe’s jurisdictional status is 'shown, and the smaller the' gap between the date of the last evidence of being under Federal jurisdiction and 1934, the greater likelihood that the tribe retained its jurisdictional status in 1934.

(AR10105-06.)

The Court agrees that the statutory term “under Federal jurisdiction” is ambiguous, and -that the Department’s two-party inquiry is reasonable. Thus, the Court affords the Department deference for its promulgation of the two-part inquiry. See United States v. Mead Corp., 533 U.S. 218, 219, 121 S.Ct. 2164, 150 L.Ed.2d 292 (2001): “It can be apparent from the agency’s generally conferred authority and other statutory circumstances that Congress would expect the agency to be able to speak with the force of law when addressing ambiguity in the statute or fills in a space in the enacted law, even one about which Congress did not have intent as to a particular result. When circumstances implying such an expectation exist, a reviewing court must accept the agency’s position if Congress has not previously spoken to the point at issue and the agency’s interpretation is reasonable.” See Confederated Tribes of the Grand Ronde Comm.’n of Ore. v. Sally Jewell, et al., 75 F.Supp.3d 387, 401-04, 2014 WL 7012707 at *9-11 (D.D.C. Dec. 12, 2014) (applying Chevron deference to the Department’s promulgation of the two-part inquiry).

III. The two-part inquiry applied to the lone Band

In the ROD, .the Secretary’s application- of the two-part inquiry consists essentially of identifying many of the aforementioned items stated in the “Factual Background” section of this Order.

With respect to. step one — whether the lone Band was under federal jurisdiction in 1934 or before — the Secretary’s justification includes: the Band’s, being a successor in interest to Treaty J in the mid-1800s; agent Kelsey’s .efforts to document members of the Band in the early 1900s; agent Terrell’s efforts to acquire a 40-acre parcel for the Band; failed — but consistent — attempts to complete the acquisition of land for the lone Band continuing into the 1930s; and a petition by the lone Band again in 1941 to complete the acquisition. (AR10108-09.)

With respect to step two — -whether the Band’s jurisdictional status remained intact in 1934 — the Secretary’s justification includes: beginning in the 1970s, efforts by the California Indian Legal Services to complete a trust acquisition for the Band; the 1972 Bruce determination; the 2006 ILD; and the fact that, in 2011, the U.S. District Court for the District of Columbia previously recognized the lone Band’s “long-standing and continuing governmental relationship with the United States,” Muwekma Ohlone Tribe v. Salazar, 813 F.Supp.2d 170, 198 (2011). (AR10109-10.)

Plaintiff makes a number of arguments that, notwithstanding the ROD’s analysis, the lone Band is not eligible to have lands taken into trust' under the IRA because they do not qualify as a “recognized Indian tribe now under Federal jurisdiction,” § 479. These arguments are stated below.

A. Section 16 and 18 elections

The IRA provides authority for the Secretary to take- land into trust for tribes and individual Indians, 25 U.S.C. § .465, and further defines a tribe to be: “any Indian tribe, organized band, pueblo, or the Indians residing on one reservation,” 25 U.S.C. § 479. Plaintiff contends that the lone Band was.not a distinct tribe in 1934, as evidenced by the fact that no special elections were held after enactment of the IRA, either to organize as a tribe (section 16) or to 'opt out of the IRA (section 18).

Section 16 of the IRA provides that a tribe “may adopt an appropriate constitution and bylaws” which shall become effective when “ratified by a majority vote of the adult members of the tribe.” 25 U.S.C. § 476(a). In Amador County, the Jackson Ranchería and Buena Vista Rancheria voted to organize under section 16, but the lone Band did not hold such an election. (AR20777.) Defendant Interve-nors argue — and the wording of section 16 lends support to this -interpretation — that these- elections were permissive rather than mandatory. Without more, the absence of such a vote by the lone Band is not persuasive that the lone Band was not a tribe at the time of the IRA’s enactment.

In contrast, under section 18 of the IRA, the Act '“shall not apply to any reservation wherein a majority of the adult Indians, voting at a special election duly called by the Secretary of the Interior, shall vote against its application. It shall be the duty of the Secretary of the Interior, within one year after June 18,1934, to call such an election, which election shall be held by secret ballot upon thirty days’ notice.” 25 U.S.C. § 478. The parties agree that the lone Band did not vote, under section 18 of the IRA, in these mandatory elections called by the Secretary. However, the text of section 18 states that those elections •pertain to “any reservation” wherein a majority of the adult Indian voted to opt out. It is a reasonable conclusion that the lone Band did not have a reservation home base on or around 1934, thus this would explain the fact - this is Defendants and Defendant Intervenors’ position - that the lone Band was not subject to section 18 elections.

•Plaintiff points to an August 15, ■ 1934 letter from O.H. Lipps, then Superintendent of the Sacramento Indian Agency, to the Commissioner of Indian Affairs, listing the various Indian communities under the jurisdiction of the Sacramento Agency (which' then included Amador County). The stated purpose of that letter was to respond to a request for information from the Commissioner about Indian communities within the Sacramento Agency’s jurisdiction,, for the purpose of facilitating the Secretarial elections described in 25 U.S.C. § 478. Lipps stated that as- of the time of writing, there were only two groups “under this jurisdiction who have organized tribal or group councils — the Tule River and Fort Bidwell Indians. (AR20755.) The Lipps letter also enclosed a list of the “various rancherías under' this Agency,” which included the Buena Vista and Jackson Rancherias, but not the lone Band. (AR20755-56.)

Defendants acknowledge that in certain instances section 18 elections were held for landless tribes. (See ECF No. 84-1, n. 15; Shawano County, Wisc. v. Acting Midwest Reg’l Dir, 53 IBIA 62, 72-73 (2011).) However, in the Lipps letter itself, it appears “rancherías” was used to refer specifically to “tracts of land”. See Lipps letter, AR20755-58 (enclosing a “list of the various rancherías under this Agency, giving name of each, county in Which located, size of tract, and population____ These [unintelligible number] tracts of land were purchased several years ago in order that the Indians' might have a place -to live undisturbed ... Many of the tracts remain unoccupied.” ' Further, approximately eight' - months earlier, Superintendent Lipps had written to the Commissioner of Indian Affairs “in reference to the proposed Indian colony for the homeless Indians near lone in Amador County, this jurisdiction.” (AR20752.) It is a reasonable conclusion that the lone Band had no “tract of land,” or at least none considered to be a ranchería under the jurisdiction of the Sacramento Agency. Without more, the Court lacks a basis to ’ find that if section 18 elections were not held with respect to -a- group of Indians, then that group cánnot be a distinct tribe. under federal jurisdiction in 1934.

B. The Ione Band, Buena Vista Rancheria, and Jackson Rancheria

Plaintiff argues: “historically, the members of whát is now the Tone Band of Miwok Indians’ were actually part of the modern-day Buena Vista Ranchería and/or Jackson Valley Rancheria tribes, rather than a separate and distinct tribal entity in its own right.” (ECF No. 65, at 40.)

For example, with respect to the 1915 Terrell Census, Plaintiff points out that it is entitled a “Census of lone and vicinity Indians,” and lists Charlie Maximo as the “recently elected Chief of the band,” but also lists ten Indians “[a]t Jackson belonging to the lone Band” and another 29 Indians “At Richey belonging to the lone Band.” (AR3490.) According to Plaintiff, among this latter group “At Richey” are listed John Oliver, Casus Oliver, and Lucy and Joseph Oliver, from whom the Buena Vista Rancheria claim descent. (AR919; 878; 4093-94; 3966.) Plaintiff points out that much of .the correspondence that Agent Terrell, had with Indians regarding the attempted Arroyo Seco land purchase is with the Olivers. (AR132; 180; 186.) See also, “Ethnohistoric Notes (1982), Glen Villa and Dwight Dutschke, Amador Tribal Council, stating: “Because of their power dating back to aboriginal times, the Maximos were accepted in the lone area as new leaders. Chief Maximo and his brothers called.themselves “Christian Indians” and stated that they had received their names in the missions ... Pplitical rivalry occurred between the.. Maximos, and the Olivers that divided the factions in the lone area. Separate villages were created, the Olivers living in Buena Vista and the Máxi-mos living in the Jackson Valley, both near lone. Both communities have survived. The Oliver village became the Buena Vista Rancheria, which was terminated in 1961. The Maximo village became the lone Band of Miwok Indians, who are currently seeking federal recognition.” (AR3966.) See also February, 1916 letter in response to Lena. Oliver, stating-in pari: “[I]t, now appears the pending purchase of 40 acres of land to include the present village location of the lone Indians will be soon be consummated ... It appears from the census of the lone Indians, compiled by me last [unintelligible] through the kind assistance of Charley Maximo and some few other Indians of the band that your name does not appear, unless you are the wife of either John or Casus Oliver, then reported as living up at Jackson, but belong properly to; the lone Band. [¶] This census indicates 101 Indians, of which 62 then resided at lone and near there, 13 at Jackson and 29 at Richey. If you are not the wife of either John or Casus Oliver, but really belong to the lone band of Indians,..[sic] am sure the omission.of your name has been an • unintentional oversight.” (AR137-38.)

Plaintiff also points out that. in more recent correspondence - such as during the pendency of the Burris litigation in the 1990s - members, of the Department referred to the lone Band interchangeably with the Buena Vista Ranchería. See e.g. correspondence from Ada Deer, October 19,1993, regarding “Publication of the Secretary’s list of Federally Recognized Tribes,” and stating the “proper name of the Tribe” is the “Buena Vista Rancheria/Ione Band of Miwok Indians” (AR843); correspondence from Ada Deer, October 24,1993, regarding an “Internal Investigation and a Formal Hearing of the BIA Attempts of Termination of the Buena Vista Rancheria/Ione Band of Miwok Indians.” (AR847).

Plaintiff points to the Glen Villa, Sr. Tribal History, which stated: “Buena Vista Ranchería, a 70 acre parcel of land 4 miles south of lone, was purchased for the lone Band. Some of the people identified on the 1915 census already lived at this site which was an old Indian village called Upusuni.” (AR3972.) The Villa history further stated that it was common for the population of Miwok tribes to be “divided between several settlements consisting of a few households more or less connected by blood, but there was also a site that was regarded as the principal one inhabitated.” (AR3974.) An analysis of the Terrell- Census, also submitted by the lone Band, shows that “Chief’ Charlie Maximo was buried at the Buena Vista Rancheria. (AR4082.)

Plaintiff also points to a letter within the record, apparently written at'some point betweén 1916 and 1920, from Agent Terrell to Commissioner of Indian Affairs Cato Sells, which refers to the “lone and Richey Band, of Indians,” and which also contains hand-written notes stating that the lone Band and Buena Vista Tribes were “one tribe” and “Buena Vista is other name.” (AR864-66.) The administrative record index shows the letter was submitted by Gerald Grazer, an attorney for the lone Band in the mid-1990s. (ECF No. 85 at 33.)

Plaintiff also points to a letter from Harold Burris’ lawyer to the Secretary of the Interior in 1994, summarizing the history of the lone Band, and stating that: “Although the factions had never acted as a tribe, in 1970 they agreed to call themselves by this name and, in fact, elected Harold, Sr. the Chairman of the lone -Band of Indians for the purpose of'leading the quiet title litigation and, later, executing ground leases with members of who occupied or desired to erect homes on either side of centerline fence.” (AR1100-01)

In sum, Plaintiff argues that as of 1934, the Secretary treated the Indians on the two land bases that were under federal supervision - the Jackson Rancheria and the Buena Vista Ranchería - as the tribes in Amador County that were under federal jurisdiction at that time. Plaintiff argues that because the remaining Indians were not a distinct tribal entity from those that were organized under the IRA, they were not a separate tribe that was under federal jurisdiction.

The Court understands Defendant and Defendant Intervenors’ position to be that the 40 acre parcel on Arroyo Seco Ranch was contemplated for purchase on behalf of peoples led by Charlie Maximo. These people were also 'part of the early Terrell census of Indians living in “lone and Vicinity”. That group, their lineage, and others in the vicinity continued ;such efforts through the early 1930s, and reinvigorated those efforts briefly in 1941; then those efforts ceased, beginniñg agaiñ in the 1970s. (AR3972-73.) The 1972 Bruce and 1994 Ada Deer determination, now being used in efforts to acquire the Plymouth Parcels, referred to the same lineage of Indians that had sought in the early 1900s and the 1970s to complete acquisition of the 40 acre Arroyo Seco parcel. (AR3550.)

More specifically, Defendant Interve-nors explain that the lone Band had a historical method of leadership ascension based on genealogical descent and location, but outside pressure caused changes in traditional village organization.. (AR3974.) Thus, in 1915, Charlie Maximo was chosen by election, rather than by lineal descent or location, to be the lone Band’s leader and spokesman. Charlie Maximo served in this position until his death in 1943.

Defendant Intervenors point out that Agent Terrell wrote to the Commissioner of Indian Affairs in 1915 explaining that a high purchase price for the property to be acquired was warranted because it was an opportunityl to buy property where the lone Band’s “Indian Village” was located, “around which cluster so many sacred memories to this remnant band.” (AR69.) A Departmental “Authority” form in 191,6 granted funds for the “PURCHASE OF LAND FOR LANDLESS INDIANS IN CALIFORNIA” and states 40 acres in Amador County is to be purchased “for the use of 101 homeless California Indians, designated as the lone Band”. (AR160.) A governmental transmittal of a partially executed deed, abstract of title, and survey plat indicated a 40-acre parcel “to be purchased for the use of 101 homeless California Indians, designated as the lone Band.” (AR153-54.) Other documents list the lone Band alongside both Buena Vista and Jackson. See Lipps-Micheals Survey, of Landless Nonreservation Indians of California, 1919 — 1920, stating: “The lone group consists of 5 families-19 people; - Buena Vista, 2 families-5 people; Jackson Valley, 7 families 27 people.” (AR8129.) See data compiled by L.A. Berrington for the Department, in June, 1927, stating “Amador County has an Indian population of approximately 260, as shown by the following detailed bands: ... lone [46 members] ... Jackson [53 members] ... Buena Vista [20 members] — ” (AR8139.)

Defendant Intervenors also argue that, as of 1934, lands had been designated as the Buena Vista and Jackson Rancherias. See O.H. Lipps Letter, August 1934, identifying the Buena Vista and Jackson Valley Rancherias among the list of Rancherias under jurisdiction of the Sacramento Indian Agency. (AR20755.) However, in 1941, attempts were still being made to acquire land on behalf of “the Indians living near lone.” (AR506-07.)

With respect to the aforementioned letter from Harold Burris Sr.’s lawyer, stating that the lone Band had “never organized as a tribe,” it appears the context for this letter was a leadership dispute during the 1990s among factions of the lone Band, represented respectively by Harold Burris, Sr, and Nicholas Villa, Jr. Defendant In-tervenors explain that the instant letter from Burris’ lawyer was a response to the March, 1994 Ada Deer letter determining the lone Band were federally recognized, and addressed to Mr. Villa as “Chief, lone Band of Miwok.” The letter from Burris’ lawyer was concerned with establishing Mr. Burris as the tribal leader, and thus the lawyer proceeded to ask Assistant Secretary Deer to either to rescind the recognition decision sent to his client’s rival or to separately recognize both factions as tribes. See Letter from Ada Deer, July 27, 1994, stating that previous correspondence to tribal letters had “been misconstrued to suggest that the Department has virtually anointed either Mr. Villa or Mr. Burris as the single leader of the lone Band .. The Department is cognizant that the lone Band is deeply divided among political factions.” (AR1129.) Further, in an earlier declaration by Harold Burris submitted during the Burris litigation, he explained he was born in 1924 and, except for the years 1942-45, lived his entire life on the aforementioned 40 acre parcel. That declaration further stated that “[djuring my growing up years in Ione, I recall talk among my elders, including our leader at that time, Captain Charlie, about getting title to the land where I was born and ■ have lived my life.” (AR20904-06.)

It is clearly beyond the scope of this Court’s authority and expertise to conduct an independent investigation into the genealogy and political history supporting recognition of the lone Band as a distinct tribe, and then to substitute that analysis for the BIA’s. Rather, the Court’s role is to ensure that the BIA made no “clear error of judgment” that would render its action arbitrary and capricious. The Lands Council v. McNair, 537 F.3d 981, 993 (9th Cir.2008) (citing Marsh v. Or. Natural Res. Counc., 490 U.S. 360, 378, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989)). The Court’s review includes, among other inquiries, reviewing “the evidence the [Department] has provided to support its conclusions, along with other materials in the record, to ensure that the [Department] has not, for instance, ‘relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or [an explanation that] is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.’ ” Id. (citing Motor Vehicle Mfrs. Assn., Inc. v. State Farm Mut. Auto. Ins, Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983).

The Court views Plaintiffs’ moving papers to identify ambiguity regarding the political and genealogical support for the lone Band’s status as a distinct tribe. To recite again some of the portions of the record: a 1916 Office of Indians Affairs’ “Authority” form referred to the purchase of 40 acres for “101 homeless California Indians, designated as the lone Band.” (AR160.) The 1919-1920 Lipps-Mieheals Survey found: “The lone group consists of 5 families-19 people; - Buena Vista, 2 families-5 people; Jackson Valley; 7 families 27 people.” (AR8129.) The 1927 L.A. Berrington data summary stated: “Amador County has an Indian population of approximately 260, as shown by. the following detailed bands: ... lone [46 members] ... Jackson [53 members] ,.. Buena Vista [20 members] — ”. (AR8139.) So it would appear that “lone” or “lone Band”, as those terms were being used to refer to a,distinct group of people, had some fluidity in the early 20th century. Furthermore, as Defendants and Defendant Intervenors would acknowledge, it appears there was genealogical and political overlap throughout the 20th. century between different groups of Indians who, currently, now identify as the Buena Vista, Jackson Valley, or Ione groups.

However, the Court’s role is to ensure the Department- was not arbitrary and capricious in determining that the lone Band is a unique tribe apart from the Buena Vista and Jackson Valley tribes. As the above referenced portions of the record reflect, the Department gave adequate consideration given to this, determination, including the possibility of genealogical and political overlap between groups. The Court does not And the Department was arbitrary or capricious, or otherwise made a clear error in judgment, in so recognizing the lone' Band as a distinct Indian tribe.

C. Land acquisition as evidence of federal recognition

Plaintiff argues that land purchase efforts by the federal government do not, standing alone, establish that the lone Band, was under federal jurisdiction in 1934. Plaintiff also argues that the failure to acquire land on behalf of the lone Band demonstrates a lack of federal jurisdiction.

With respect to the first argument, Plaintiff refers to Hazel E. Elbert’s, Deputy to the Assistant Secretary, explanation to Senator. Cranston in 1990; “The California land, purchase program was aimed at buying acreage for miscellaneous, landless Indians, whether or not they then existed as part .of a tribal entity or had previously been federally recognized. The purchase of lands for these Indians did not, in and of itself, prove or establish the existence of a govemment-to-government relationship between an Indian tribe and the United States.” (AR645.) As another example, the 2006 ILD stated: “The’ actions of the Department in furtherance of its efforts to acquire land for the Indians at lone are not conclusive as to the- Band’s recognized tribal status. Throughout California in the early part of the Twentieth Century, the Department attempted to purchase land wherever it could for landless California Indians without regard to the possible tribal affiliation of the members of the groupi.” (AR5072.) However, the record indicates that many considerations' went into the Department’s current position that the lone Band was under federal -jurisdiction in Jurie 1934. While the trust acquisition attempts have perhaps' the most obvious role in reaching that position, the Department also considered the genealogical and political history of the Tone Band.

With respect to the second argument, Plaintiff argues that federal courts have historically recognized the concept of fed-

eral jurisdiction as inseparable from ownership of the land. See Yankton Sioux Tribe v. Podhradsky, 606 F.3d 994, 1007 (8th Cir.2010) (“Section 1151(a) thus separates the concept of jurisdiction from the concept of ownership.”); 1-15 Cohen’s Handbook of Federal Indian Law ¶ 15.07 (2012) (“Taking land into trust shields the land from involuntary loss, and, if the land is located outside an existing Indian reservation, establishes it as an Indian country with all the jurisdictional consequences attaching to that status.”) (ECF No. 65 at 46.) See Yankton Sioux, 606 F.3d at 1011 (holding that land taken into trust by the federal government under section 5 of the IRA “is effectively removed from state jurisdiction”). Plaintiff argues that the lone Band was not the subject of any pre-1934 congressional appropriation